Cook v. Clevinger

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Lydia Cook, Respondent,

v.

Regions Bank and Robyn Clevinger, Appellants.

Appellate Case No. 2014-001196

Appeal From Hampton County
Brooks P. Goldsmith, Circuit Court Judge

Unpublished Opinion No. 2016-UP-387
Submitted June 1, 2016 – Filed July 27, 2016

AFFIRMED IN PART AND REVERSED IN PART

John H. Tiller and Amy F. Bower, both of Haynsworth
Sinkler Boyd, PA, of Charleston; and C. Mitchell Brown,
Brian P. Crotty, and Michael J. Anzelmo, all of Nelson
Mullins Riley & Scarborough, LLP, of Columbia, for
Appellant Regions Bank.

Ernest Mitchell Griffith, of Griffith, Sharp & Liipfert,
LLC, of Beaufort, for Appellant Robyn Clevinger.
John E. Parker and William F. Barnes, III, both of Peters
Murdaugh Parker Eltzroth & Detrick, P.A., of Hampton,
for Respondent.

PER CURIAM: Regions Bank and Robyn Clevinger (Appellants) appeal the trial
court's denial of their motions for directed verdict and judgment notwithstanding
the verdict (JNOV). Appellants claim the trial court erred by denying the motions
because (1) the alleged defamatory statement was true or, at a minimum,
substantially true; (2) Respondent Lydia Cook failed to present evidence showing
the statement was published to a third party; and (3) Appellants were entitled to a
qualified privilege and did not abuse the privilege. Appellants also assert the trial
court erred by submitting the issue of punitive damages to the jury because Cook
failed to present any clear and convincing evidence of actual malice. We affirm in
part and reverse in part.

Initially, relying on Stephens,1 Cook argues Appellants failed to preserve their
arguments because they failed to move for a directed verdict at the close of all
evidence. We find Appellants were not required to renew their motions for
directed verdict after Cook published the stipulation. In contrast to Stephens,
Appellants in this case did not introduce any additional evidence following their
last directed verdict motions. Also, the stipulation related to Regions Bank's net
worth, which could not have impacted the trial court's analysis of Appellant's
directed verdict arguments. Further, Cook introduced the stipulation immediately
after the trial court ruled on the directed verdict motions. Thus, any renewal of
Appellants' motions for directed verdict would have been futile when the evidence
within the stipulation did not relate to Appellants' arguments and there was no
passage of time during which the trial court could have reevaluated its earlier
ruling. See Fettler v. Gentner, 396 S.C. 461, 469, 722 S.E.2d 26, 31 (Ct. App.
2012) ("This court does not require parties to engage in futile actions in order to
preserve issues for appellate review."); id. at 470, 722 S.E.2d at 31 (finding a jury
charge argument preserved even though no objection was made because the
objection would have been futile when the trial court had already ruled there was
evidence to go to the jury on the issue in its ruling on the appellant's directed
verdict motion). Thus, Appellants properly preserved their arguments.

1
Stephens v. CSX Transp., Inc., 415 S.C. 182, 781 S.E.2d 534 (2015).
With regard to Appellants' argument the trial court erred by denying their motions
for directed verdict and JNOV because Clevinger's statement was true or, at a
minimum, substantially true, we affirm because there is some evidence in the
record to support the trial court's ruling. See RFT Mgmt. Co. v. Tinsley & Adams
L.L.P., 399 S.C. 322, 332, 732 S.E.2d 166, 171 (2012) ("An appellate court will
reverse the trial court's ruling [on a motion for JNOV] only if no evidence supports
that ruling below."). Cook testified she merely hugged Clevinger and kissed her on
the cheek. Cook asserted her actions were not aggressive and it was impossible for
her to have injured Clevinger. Also, Dr. Glenn Welcker's letter supported Cook's
assertion that she could not have aggressively hugged and injured Clevinger.
Although Cook's and Dr. Welcker's assertions were contradicted by Clevinger and
Freeman, a reasonable jury could have believed Cook's version of events, and
neither the trial court nor this Court has the authority to resolve conflicting
testimony when deciding a motion for directed verdict or JNOV. See id. ("[A]
motion for JNOV may be granted only if no reasonable jury could have reached
the challenged verdict."); id. ("In deciding such motions, neither the trial court nor
the appellate court has the authority to decide credibility issues or to resolve
conflicts in the testimony or the evidence.").

Furthermore, we disagree with Appellants' argument they needed to show only that
Clevinger perceived Cook's actions as violent, aggressive, and intimidating.
Clevinger's perceptions were irrelevant when analyzing Appellants' truth defense.
The statement itself must have been true or substantially true for Appellants to
prevail as a matter of law on their truth defense. See Fountain v. First Reliance
Bank, 398 S.C. 434, 442, 730 S.E.2d 305, 309 (2012) (concluding a defendant has
"a complete defense to defamation based on the statement's literal meaning").
Accordingly, we affirm on this issue.

With regard to Appellants' argument the trial court erred by denying their motions
for directed verdict and JNOV because Cook failed to present evidence Clevinger
published her statement to a third party, we affirm. Appellants admit Clevinger
made the statement to multiple of her coworkers and supervisors. We reject
Appellants' argument that communications between employees do not qualify as
publications for defamation purposes. See McBride v. Sch. Dist. of Greenville
Cty., 389 S.C. 546, 562, 698 S.E.2d 845, 853 (Ct. App. 2010) ("[I]n South
Carolina, an employee's statement to another employee is a 'publication' when the
privilege of the employees' common interest is abused."). We find
communications between employees are publications for defamation purposes, but
they may be entitled to a qualified privilege as discussed below.
This rule is consistent with other jurisdictions. See Popko v. Cont'l Cas. Co., 823
N.E.2d 184, 188 (Ill. App. Ct. 2005) ("The communication of interoffice reports
within a corporation has previously been determined to constitute a publication for
defamation purposes."); Luttrell v. United Tel. Sys., Inc., 683 P.2d 1292, 1294
(Kan. Ct. App. 1984) ("We conclude that remarks communicated by one corporate
employee to another concerning the job performance of a third employee are
publication for the purposes of a defamation action against the employer.");
Wallulis v. Dymowski, 918 P.2d 755, 760 (Or. 1996) (en banc) ("[W]e hold that a
defamatory communication from one corporate employee to another corporate
employee concerning the job performance of a third employee is 'published' for the
purpose of a defamation claim.").2 Accordingly, we affirm the trial court's denial
of Appellants' motions for directed verdict and JNOV based on whether Clevinger
published the statement to a third party because communications between
employees of a corporation qualify as publications for defamation purposes.

With regard to Appellants' argument the trial court erred by denying their motions
for directed verdict and JNOV because they were entitled to a qualified privilege
and there was no evidence tending to show they abused the privilege, we affirm.
We find a qualified privilege existed in this case, but there was some evidence
tending to show Clevinger abused the privilege such that we affirm the trial court's
denial of Appellants' motions. See RFT Mgmt., 399 S.C. at 332, 732 S.E.2d at 171
("An appellate court will reverse the trial court's ruling only if no evidence
supports that ruling below."); Fountain, 398 S.C. at 444, 730 S.E.2d at 310 ("The
essential elements of a conditionally privileged communication may be enumerated
as good faith, an interest to be upheld, a statement limited in its scope to this
purpose, a proper occasion, and publication in a proper manner and to proper
parties only."); id. ("An abuse of the privilege occurs in one of two situations: (1) a
statement made in good faith that goes beyond the scope of what is reasonable

2
We acknowledge some jurisdictions have reached the opposite conclusion. See
Lovelace v. Long John Silver's, Inc., 841 S.W.2d 682, 684 (Mo. Ct. App. 1992)
(recognizing the "intra-corporate immunity rule" and explaining "communications
between officers of the same corporation in the due and regular course of the
corporate business, or between different offices of the same corporation, are not
publications to third persons"). However, we follow this Court's ruling in
McBride.
under the duties and interests involved or (2) a statement made in reckless
disregard of the victim's rights.").

Under our deferential standard of review, we find there was some evidence tending
to show Clevinger abused the privilege by making the statement in bad faith with
an improper motive. When arguing the directed verdict motions, Regions Bank
admitted, "in fairness to the court, . . . there [was] some evidence" of Clevinger
having a motive to falsely issue the statement. There was at least some evidence
that Clevinger had an improper motive to make the statement, which if true could
have been an abuse of the privilege. In April 2011, Cook filed a complaint about
Clevinger with human resources, and according to Cook, the following day
Clevinger asked her "who [she] had been talking to" and began treating Cook
negatively. Also, approximately eighteen days after the incident at issue in this
case, Clevinger told Holly Johnson she could no longer work with Cook. We find
this evidence amounts to some evidence supporting the trial court's ruling, and
thus, we affirm.

With regard to Appellants' argument the trial court erred by submitting the issue of
punitive damages to the jury because Cook failed to present any clear and
convincing evidence that Clevinger published the statement with actual malice, we
agree and reverse.3 See S.C. Code Ann. § 15-33-135 (2005) ("In any civil action
where punitive damages are claimed, the plaintiff has the burden of proving such
damages by clear and convincing evidence."); Erickson v. Jones St. Publishers,
L.L.C., 368 S.C. 444, 466-67, 629 S.E.2d 653, 665 (2006) (explaining that to
recover punitive damages on a defamation cause of action, the plaintiff "must
prove by clear and convincing evidence that the defendant acted with constitutional
actual malice, i.e., the defendant published the statement with knowledge it was
false or with reckless disregard of whether it was false or not").

Additionally, our supreme court has delineated a less deferential standard of
review for punitive damages in defamation cases.

Whether evidence is sufficient to support a jury's finding
of constitutional actual malice in a defamation action is a
question of law. The trial court must make such a

3
The jury awarded Cook $375,000 in actual damages and $125,000 in punitive
damages.
determination before submitting the issue to the jury.
When the jury makes such a finding, the appellate court
must independently examine the record to determine
whether the evidence sufficiently supports a finding of
actual malice. This review is necessary due to the unique
character of the interest protected by the actual malice
standard.

Id. at 477, 629 S.E.2d at 670-71 (citations and internal quotation marks omitted).

After examining the record, we find Cook failed to carry her burden of showing by
clear and convincing evidence that Clevinger published the statement with
knowledge of its falsity or with reckless disregard of whether it was false or not.
When arguing she carried her burden of proof, Cook asserts the evidence showed
Clevinger stated on May 27, 2011, approximately eighteen days after the incident,
she could "not continue to work with [Cook] at this point, this pace." We believe
this isolated assertion was not probative of Clevinger's intentions and knowledge at
the time she made the allegedly defamatory statement because it was vague,
occurred eighteen days after the incident, and was pulled from Holly Johnson's
handwritten notes. This note does not amount to clear and convincing evidence
that Clevinger made the allegedly defamatory statement with knowledge of its
falsity or reckless disregard for whether it was false or not.

Next, Cook points to her own assertion during trial "that she felt Clevinger was
retaliating against her for filing the complaint" to human resources in April 2011.
We believe this assertion amounts to nothing more than speculation. There is no
clear and convincing evidence in the record to show Clevinger was even aware of
Cook's complaint to human resources. Cook claimed Clevinger approached her
and asked who Cook "had been talking to." This simple question by Clevinger
does not show Clevinger was aware of Cook's complaint or that Clevinger was
referring to the complaint even if she was aware of it. We do not believe Cook
produced clear and convincing evidence showing Clevinger was retaliating against
Cook by publishing her allegedly defamatory statement with knowledge of its
falsity or reckless disregard for whether it was false or not.

Cook also points to Andree Lloyd's testimony that she did not believe Clevinger
was telling the truth. However, Lloyd merely stated she did not believe Clevinger.
Lloyd did not have any actual evidence tending to show Clevinger made the
allegedly defamatory statement with knowledge of its falsity. Lloyd did describe
other incidents in which she believed Clevinger had been untruthful, but those
events were completely unrelated to the statement in this case. Thus, we do not
believe Lloyd's speculative opinion about Clevinger's veracity in this instance
amounts to clear and convincing evidence that she published the statement with
knowledge of its falsity.

Additionally, Cook points to Regions Bank's conduct of terminating Clevinger and
Dr. Welcker's letter regarding Cook's physical limitations as evidence supporting
punitive damages. We find this evidence had very little, if any, probative value
regarding whether Clevinger published her statement with knowledge of its falsity
and, thus, did not provide the requisite clear and convincing evidence. Regions
Bank's actions following the statement do not provide any evidence concerning
whether Clevinger published the statement with constitutional actual malice.
Accordingly, under our standard of review for punitive damages in defamation
cases, we find Cook failed to carry her burden of showing by clear and convincing
evidence that Clevinger published the statement with knowledge of its falsity or
with reckless disregard of whether it was false or not. The trial court erred by
failing to grant Appellants' motions for directed verdict and JNOV, and we reverse
the jury's award of punitive damages.

Based on the foregoing, we affirm the trial court's denial of Appellants' motions for
directed verdict and JNOV with regard to their arguments on the truth defense,
publication, and abuse of the qualified privilege. However, we reverse the trial
court's decision on punitive damages as discussed above.

AFFIRMED IN PART AND REVERSED IN PART.4

SHORT, WILLIAMS, and THOMAS, JJ., concur.

4
We decide this case without oral argument pursuant to Rule 215, SCACR.